Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-12-14
COURT OF APPEALS.
Synopsss CT Decisions Rendered st The
Present Tyler Sitting OF the
Court OF Appeals.
Tho Case of Robert Morris et al VS.. Nat
Kramer, ppsal from TarIant County,
Reversed aud demanded.
Correspondence Of toe Gazette.

ZIG SUuEG Oh AppSSls: hJDSrG hcrIlS et
al. vs.. Nat Kramer; appeal from Tsrrant
county. Appellee Kramer claimed hslf
interest in the note as partner of j. c.
Morris, deceased, and sued Robert Nor
ris, who had full lower of sttorney from
the heirs TO settle up j. &. morris estate,
for $3.50 as for wrongful conversion OF
the note. Upon the trial there WAS no
evidence of partnership except the testi-
| moDY OF kramer, his evidence being that
she was partner OF J. G. Morris in his
| lifetime, that as such partner
| in business with said j. c.. Morris, he
owned half interest in note PAYABLE to
J. c. Morris, On order, for $500, and
signed by J. G. Kerby. Held: Under
article 224S, Revised Statutes, this proof
can no. be made by plaintiff in such suit
of this kind. Reversed and remsnded.
Hurt, j,
John Field vs.. the State; appeal from
Taylor. Conviction for theft. Held;
To warrant an inference OF guilt
OF theft from the circumstance Of posses
sion must be personal and eXcluiYe;
must be unexplained, and must involve
distinct and conscious assertion of
property By the defendant. No such pos
session is shown by the evidence in this
case Reversed and remanded. Will
son.
The Texas and Pacific Railroad Com
pany aud the Missouri Pacific Railroad
Company vs.. 81. j. Weller; appeal from
Midland county. Appellee sued the COM
psnies as common carriers, alleging in
snbstar &c th6t ne shipped sixty five head
of cattle from Fort Worth to Midland;
that the cattle were not transported in a
reasonable time, were not fed, etc, in
consequence of which several died, and
most If not all, were seriously injured.
Defendants plead the damages were
caused by plaintiffs own negligence In
this, that ne overloaded said cattle il the
csrs, the same being poor and weak, that
they were crowded in the cars in such
manner that they crowded aud
trampled upon each other, and il
damaged at al defendants are not re-
sponslble for same. The Witnesses for
plaintiff sWOre that the employees CT the
company loaded the cattle. Defendsnt'e
witnesses swore Just TO the contrary. Tne
jury was instructed upon the plaintiffs
theory Of the case, but not upon the de.
fendant's theory. Held: Error. Botf
theories should have been submits d tx
the jury to be solved. Reversed and re
msnded. Hurt, J.
Henry Stewart VS.. the Safe; appas-
from Hopkins county. Conviction fcl
theft. The bills Of exception contained
in the record were not fled within teC
days a ter the conclusion OF the trial
Held: They CANNOT be considered by thiG
court. There is not particle OF eVi
deECe tending to connect the defendsn
with the TIT IL @! the alleged stolen COW
and the judgment must be reversed ana
the cause remanded. Wilson, j.
Tom Williams vs. the Sac; appea
from Lamar coanty. In this case, evl
dence tending 20 prove other distinc
thefts than the one for which deiendsu
was On trial which had been committed
by him at different times and places We
admitted over his objections. Held
This was material error, well calculated
TO iDjure the defendant and because @
such error the judgment is reversed anC
the cause is remanded. Wilson, J.
T G. Townsend & T. B. Whorton vs.
A. K. Shepard; appeal from Hill county
: ToWneend and Shepard having some dif
ferences, submitted their disputes to ar
8 bitratioD, filing with Whorton, who was
justice Of the peace, their agreement Il
arbitrate in writing under the statute
Arbitration under said agreement wa
made and an award returned in favor o
appellee for the sum of S12l .98, anl
said justice OF the peace entered iudg.
ment upon said award. Afterwards, upoE
motion OF Townsend, said Judgment wa
) vacated and set aside. Appelle;
then brought this suit in tn,
County court, praying for mandamus Il
3 compel said justice Of the pesce 20 pro
, coed to execute the judgment entered
upon tie awsri. the County cour
granted the mandsmus. Held: The
County court III granting the mandarin!
and entertaining this suit fer any purpos,
acted without jurisdiction and Withou
authority OF law. TIE judgment is re.
versed and the suit is dismissed. VIII
SOP, j.
Casey & SHasey vs.. Smith & Smith
! appeal from Brown county. 1t is nov
declared to be the law that the Landlord
= who leases his house has lien upon tt.
property of the tenant therein situate
and not exempt from forced sal,
, for all rent accrued and tc
sccrue during the entire term of the lease
Such being the law, Appellee BROOKE
Smith had lien upon the property il
question at the time his distress warran
was issued and levied, which lien wa
superior to the rights of appellants &C
quired by their purchase of said property
Our former judgment in this case is sc
r aside, and there being no error in tn,
I judgment of the trial court, the same il
a Ednned. Wilson, j.
Ed Cfowell vs.. the State; appeal from
Limestone county. This is an appea
irem conviction Of theft. The case rests
wholly upon circumstantial evidence, i
was therefore material error to omit Il
charge the jury the rules relating to cir
cumstsntiai evidence. There was not
2 particle OF evidence establishing the allie
Z CATION that the animal killed by the de
. fendant wes the property of Cunning
9 ham except the uncorroborate(
testimony Of an accomplice
Held: The evidence is INSULT
cient to support the conviction. Tn;
charge was erroneous in iDstructing ths
it WAS the killing of the animal that con
stituted the offense. 1t was the taking O
the animal While on It's accustomed range
and not the killing that constituted ths
theft OF the animal. The record of the
"rosd" brand Of Cunningham, made afte,
his cattle were driven from the county